Novak v. Helen Mining Co.
| Docket Number | BRB 21-0485 BLA |
| Decision Date | 24 April 2023 |
| Parties | DOROTHY E. NOVAK (Widow of CHARLES NOVAK) Claimant-Respondent v. HELEN MINING COMPANY and VALLEY CAMP COAL COMPANY Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits on Remand of Drew A. Swank, Administrative Law Judge, United States Department of Labor.
Heath M. Long and Matthew A. Gribler (Pawlowski, Bilonick & Long), Ebensburg, Pennsylvania, for Claimant.
Kathy L. Snyder (Jackson Kelly PLLC), Morgantown, West Virginia for Employer and its Carrier.
Before: GRESH, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.
GRESH Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge:
DECISION AND ORDER
Employer appeals Administrative Law Judge (ALJ) Drew A. Swank's Decision and Order Awarding Benefits on Remand (2017-BLA-05528) pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a survivor's claim[1] filed on May 27, 2016, and is before the Benefits Review Board for a second time.
In his initial Decision and Order Awarding Benefits, the ALJ credited the Miner with at least fifteen years of underground coal mine employment. He found the pulmonary function and arterial blood gas testing does not establish total disability. 20 C.F.R. §718.204(b)(2)(i), (ii). In addition, he found the medical opinion evidence does not establish total disability,[2] finding the opinions of Drs. Begley and Spagnolo that the Miner was not totally disabled are well-reasoned and documented.[3] 20 C.F.R. §7l8.204(b)(2)(iv).
Although Claimant failed to establish total disability at 20 C.F.R. §7l8.204(b)(2)(i)-(iv), the ALJ noted the record contains lay testimony from the Miner's surviving son, Anthony Novak, regarding the Miner's difficulty breathing and walking and use of supplemental oxygen at the time of his death. The ALJ found the Miner's treatment records and medical history at the time of his death buttress Mr. Novak's lay testimony and, together, support a finding of total disability. Because the regulations recognize pneumoconiosis as a progressive and an irreversible disease, the ALJ assigned "more weight to the [M]iner's medical examination and treatment records and Mr. Novak's testimony than to the [M]iner's [earlier] non-qualifying" objective testing. Initial Decision and Order at 16. Therefore, he found Claimant invoked the Section 411(c)(4) presumption of death due to pneumoconiosis,[4] 30 U.S.C. §921(c)(4) (2018). He further found Employer did not rebut the presumption and awarded benefits.
In consideration of Employer's appeal, the Board affirmed the ALJ's finding of at least fifteen years of underground coal mine employment and rejected Employer's constitutional challenge to the Section 411(c)(4) presumption. Novak v. Helen Mining Co., BRB No. 19-0064 BLA, slip op. at 3 n.3 (Dec. 17, 2019) (unpub.). With respect to Employer's argument that the ALJ erred in relying on Mr. Novak's lay testimony to find total disability established in this survivor's claim because the record contains evidence relevant to the Miner's pulmonary condition, the Board disagreed. Id. at 7. Specifically, the Board held that Claimant can establish total disability through lay testimony pursuant to 20 C.F.R. §718.305(b)(4)[5] if the ALJ finds the medical evidence neither establishes nor refutes total disability. Novak, BRB No. 19-0064 BLA, slip op. at 5-6. The Board noted this case arises under the jurisdiction of the United States Court of Appeals for the Third Circuit[6] and explained that in Koppenhaver v. Director, OWCP, 864 F.2d 287, 289 (3d Cir. 1988), that court interpreted an analogous provision at 20 C.F.R. §727.203(a)(5) to hold that consideration of lay evidence is permissible where the medical evidence of record is "insufficient to establish total disability or lack thereof," not that it is merely absent. Novak, BRB No. 19-0064 BLA, slip op. at 5-6, quoting Koppenhaver, 864 F.2d at 289.
The Board agreed with Employer, however, that the ALJ erred by failing to consider relevant evidence. Novak, BRB No. 19-0064 BLA, slip op. at 6-7. Although the ALJ had found the Miner's objective testing conducted eight months before the Miner's death was less reliable than the Miner's subsequent treatment records, the Board explained that Dr. Spagnolo had reviewed the Miner's more recent treatment records and his autopsy evidence and opined that the Miner was not totally disabled. Id., citing Employer's Exhibit 12 at 10. Thus, the Board held that the ALJ erred by failing to address whether Dr. Spagnolo's opinion is sufficient to refute a finding of total disability. Id. Because "this evidence, if credited, could refute a finding of total disability, precluding reliance upon Mr. Novak's testimony to establish total disability," the Board vacated the ALJ's finding that Claimant invoked the Section 411(c)(4) presumption[7] and therefore the award of benefits, and remanded the case for further consideration. Id.
Considering the case on remand, the ALJ found the evidence neither establishes nor refutes total disability. He then found Claimant established total disability through Mr. Novak's lay testimony and the Miner's treatment records. 20 C.F.R. §718.305(b)(4). Thus he found Claimant invoked the Section 411(c)(4) presumption of death due to pneumoconiosis. He further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer again argues that lay testimony cannot be used to establish total disability under 20 C.F.R. §718.305(b)(4) if the record contains any medical evidence relevant to total disability. It also argues the ALJ erred in finding Mr. Novak's testimony and the Miner's treatment records sufficient to establish total disability, thereby invoking the Section 411(c)(4) presumption. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), indicated he will not file a substantive response unless specifically requested to do so by the Board.
The Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Assocs., Inc., 380 U.S. 359 (1965).
As discussed above, the Board previously held that lay evidence may be used in this survivor's claim to invoke the Section 411(c)(4) presumption if the ALJ finds the medical evidence neither establishes nor refutes total disability. Novak, BRB No. 19-0064 BLA, slip op. at 5-6. Employer concedes the Board's holding constitutes the law of the case.
Employer's Brief at 7-12. It argues, however, that a valid exception applies to that doctrine because the Board's holding is clearly erroneous. Id.
Employer contends that the regulation at 20 C.F.R. §727.203(a)(5) that the Third Circuit interpreted in Koppenhaver is not analogous to 20 C.F.R. §718.305(b)(4). Employer's Brief at 8-9. It also argues that that the underlying facts of Koppenhaver are distinguishable from the case at bar.[8] Id. Thus Employer maintains Koppenhaver is of limited precedential value. Id. Based on our review of the applicable regulations and the Third Circuit's holding in Koppenhaver, we conclude our prior holding is not clearly erroneous. In re City of Philadelphia Litig., 158 F.3d 711, 722 (3d Cir. 1998) (); see also Hillibush v. U.S. Dept. of Labor, 853 F.2d 197 203-05 (3d Cir. 1988) ().
Employer also argues the Board's holding in Sword v. G & E Coal Co., 25 BLR 1-127 (2014) conflicts with its holding in this case. But the facts are distinguishable from Sword -- a case arising within the jurisdiction of the Sixth Circuit, where the ALJ relied solely on lay testimony to find total disability established. Because the record in Sword contained extensive medical evidence addressing the miner's pulmonary status at the time of his death, including multiple pulmonary function studies, arterial blood gas studies, medical reports and the miner's treatment notes, the Board agreed with the employer's argument that, under the Sixth Circuit's holding in Coleman v. Director, OWCP, 829 F.3d 3 (6th Cir. 1987),[9] it was inappropriate for the ALJ to rely solely on the lay testimony to find total disability established. Sword, 25 BLR at 1-131. In the present case, the ALJ did not rely exclusively on the Miner's testimony, but credited it as supported by the limited medical evidence of record establishing the Miner's respiratory condition at the time of his death. Further, this case arises within the Third Circuit's jurisdiction and therefore we must apply Koppenhaver as controlling precedent. Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc).
Finally, we conclude the Board's prior holding does not result in shifting the burden of proof to Employer to establish total disability. Employer's Brief at 7-8. Contrary to Employer's argument, Claimant is still required to establish total disability through credible lay evidence that is sufficient to meet his burden of proof under 20 C.F.R. §718.305(b)(4).
As Employer has not shown that the Board's prior holding was clearly erroneous, or set forth any other valid exception to the law of the case doctrine, we...
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